I don’t suppose I have any disagreement with the overall observation by Jeff Shafer that Obergefell v. Hodges implies a disengagement of marital and familial formation from traditional Christian expressions of the value of the differences between the sexes. That said, I also don’t understand Obergefell to be sui generis in its pronouncements on these matters. As canvassed in Carl Trueman’s, The Rise and Triumph of the Modern Self, the social and cultural assumptions about the nature of liberty and the moral claims that underwrite Obergefell have been developing in the Enlightenment West’s social and political theory for nearly three hundred years now. In this context, Obergefell is not revolutionary or even radical. Alasdair Macintyre’s diagnosis of the triumph of these trends in the Western view of the human person and its social forms in his famous After Virtue were made in 1981, after all. Obergefell addressed the specific question of whether there exists a right to liberty in the Due Process clause of the 14th Amendment to marry persons of the same sex and obtain legal recognition on a national basis. If anything, that the votes by the justices of the United States Supreme Court in 2015 were 5-4 revealed a surprising resilience against the tide of radical sentiment on these questions in the conscience of the current legal class.
Shafer identifies a myriad of questions addressing family law and the status of relations between married persons that worry him, and he is right to isolate what Obergefell held from what it did not hold on these matters. Obergefell may be a harbinger of further innovations in family law and the law of the sexes, of course. As he points out, the extension of Obergefell to resolve Pavan v. Smith is evidence enough to validate such concerns.
And, as James Stoner points out, the practical application of Obergefell in lower courts on the interests of children may itself produce enough popular reaction to limit its scope. On this point, it may be helpful to note that in its opinion striking down the Arkansas birth certificate restrictions at issue in Pavan, the high court decided the case on the disparate treatment of same-sex married spouses and opposite-sex married spouses on one, particular small point. Arkansas statutes provided that in the unusual situation where there was no identified paternal parent — in cases involving artificial insemination, or where paternity has not identified a father — a spouse who admittedly had no paternity claim could be placed on the child’s birth certificate, when his spouse gave birth to the child. Applying Obergefell, the Court held that because this accommodation of a non-paternal spouse on the birth certificate was based upon the existence of a marital relationship, same-sex marriages were entitled to the same treatment as heterosexual marriages. In other words, there is good reason to believe that the idiosyncratic occasion of Pavan limits its application in future cases. We have been invited to a conversation, of course, and in fairness to his argument, Shafer is not so much describing the decision in More important is the Court’s decisive turn against an expansive understanding of the role of autonomy in the Due Process clause of the 14th Amendment in subsequent cases.; Obergefell was decided in 2015, and Pavan in 2017. More recent cases provide good reason to believe that the Court will go no further. The majority’s decision is an act of will, not judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are? Obergefell v. Hodges
This is not to say that Shafer is incorrect to worry about what a judicial expression of will by the Supreme Court has on the culture at large in a high-profile case about important matters. Public morality has its impact on laws, of course, and changes in laws may provide worrisome evidence of changes in society’s norms. So too – and here is where we agree – law has its own pedagogical weight: it can and does influence the development of those norms. Shafer, and the Church at large, is right to worry when the wrong teacher sets foot in the classroom.
Still, if this Theopolis conversation is about Obergefell, there is consolation in that whatever its jurisprudence sought to teach, its expansive view of liberty and the 14th Amendment does not appear to have a place in the current moment. Even a decade later, the Court made a notably reactionary[1] turn on the scope of liberty provided in the 14th Amendment in Dobbs v. Jackson Women’s Health Organization.[2] As a matter of purely legal doctrine, Dobbs should provide some comfort that the radical understanding of liberty that had been working its way into the culture without much pause may have reached its nadir. The Court – 6-3, this time[3] — has made a judgment that the 14th Amendment itself does not contain the radical understanding of liberty as unrestrained autonomy implied in Planned Parenthood v. Casey. There does not appear to be any judicial will to expand the definition of liberty that resides in the Constitution, at least for the time being.
Looking back through Dobbs then, it is still worth asking: does Obergefell as an American legal artifact and its implications in the culture present any critically important questions for the American Church? Shafer, Stoner and Farrow have contended that Obergefell must be reversed. But one question comes to mind, and I mean it seriously. Obergefell was handed down ten years ago, and its decision still reigns on the issue of marriage in the secular society within which we live. Fair enough. But so what? Views of marriage that the Church rejects as sinful are present in this culture and in its institutions. Is that a surprise, is it a historical novelty? And, what exactly does that have to do with us? Allow me some grace for a moment; there is something to the secular rejoinder on this point. During the Lincoln-Douglas debates, Abraham Lincoln was annoyed by Stephen Douglas’s repeated insistence that equality for African Americans in the US might lead to the alleged horrors of miscegenation. Running out of patience, Lincoln joked that Douglas apparently feared that he or his friends might marry a black person if laws did not prohibit it. There is something to the retort we sometimes hear shouted from outside the Church: “if you oppose same-sex marriage, don’t marry a person who is the same-sex as you are.”
Professor Farrow’s answer to the “so what?” question might be that Obergefell represents the disjunction of the legal institution of marriage as conceived by the State from actual marriage, which was itself created by God. Farrow is certainly correct to observe that the State here has no real authority to redefine marriage as such, for the authority to define marriage is elsewhere. The State’s only authority is to formulate and enforce a compromise of the institution, a modus operandi, so to speak, to accommodate a distorted understanding of marriage which has developed in the culture at large. And, as Farrow points out, an overturning of Obergefell as positive law in the US would not actually solve any real failures in the popular understanding of what marriage actually is, or what rightly-ordered sexual ethics require of human beings. Farrow wants Obergefell to be overturned, but as he says, it must be rejected before it is reversed.
But here is a point I would raise for my brothers here: has Obergefell’s understanding of liberty and marriage not already been rejected in the location of authority over what it actually is, i.e. the Church? Another way of presenting the issue might be: does not the Church have its own culture, with its own moral authority, its own norms? Does not the Church maintain a juris-generative role over marriage and sexual ethics in the larger world — ruled by Christ – despite what a civil authority in one State may say from time to time?
And so I repeat: Obergefell — so what? One answer might be that while we usually think of the law as the product of moral preferences, it is also the case that the law can have its own hortatory effect on the hearts and minds of those within the Church. Moral claims produce laws; laws also produce moral claims. True. And we have reason to worry about this: it is apparent that the current generation of church youth have more permissive views on most questions of sexual ethics – same-sex marriage, pre-marital sex, co-habitation — than their parents’ generation. There is a question worth addressing elsewhere here: what has happened that we are left with the culture at large – including the young people in our churches — equivocating on the traditional Christian marriage and sexual ethics that have prevailed for millennia? But notably for the discussion here, this concern is not about what the United States Supreme Court has held in any given opinion, or what statutes are struck down or adopted in its wake. No. This is a concern inside the Church, and whether its imagination has been corrupted such that it has insufficient persuasive authority within itself to maintain its own understanding of liberty, marriage, or sex. Or, whether it has compromised on the understanding of liberty in the same manner of the various societies in which the members of the Church live.
For my part, the important question in response to Obergefell, then, is whether the Church has a superior understanding of liberty than a civil court and its view of the autonomy of the human person. Or, whether the Church disagrees with Obergefell’s view of liberty at all. As has been effectively described by others,[4] the view of the human person that prevails in contemporary culture is grounded in a methodological individualism that has been advancing in the West for several centuries, and Obergefell is an indicator of the juris-generative power of the Enlightenment’s view of the individual, that is, its power to make a world, which it certainly has done. Do we disagree with its anthropology?
Which brings us back to the house discussion we are having: what exactly does Obergefell’s anthropology have to do with the Church? The anthropology of the Bible does not endorse the grand narrative of Enlightenment: that of the isolated individual as against the State, or the corollary that moral claims are to be verified by individual emotive responses. So too, the Church does not share the Enlightenment’s claim that social communities are nothing more than the products of individual consent.
Instead, as I have discussed elsewhere,[5] the Church makes its own World, with its own view of the human person. The man conceived of as an autonomous individual whose only bonds to one another are by consent is the “old man” that Christ’s work on the cross transfigures. We are made into a “new man” on an involuntary basis, i.e. by the work of God Himself, who reconstitutes the Christian into a person who is not only an individual, but who is also bounded within a corporate existence, the Church. Thus, the existence of the Church itself rejects the false dualism of the Enlightenment, which paints the grim picture of the solitary individual isolated from all others, struggling against the brutal State to retain an overwrought autonomy from it. And, after Pentecost, the Church has been placed by Christ into the middle of the World, as a world-building temple, with a rightly ordered view of the human person and the divine community He lives within present for all to see.
All of this to say, if any self-reflection is due on Obergefell’s identification of the prevailing view of the human person, we would do well to evaluate how the Church has internalized the “old man” view of the individual that the case represents. Too often, our self-understanding fits comfortably within this view: the Church as a voluntary association of autonomous individuals, bound together with the weak bonds of consent. This man is as isolated from one another as much as anyone at the courthouse, in line to apply for a license to marry. If the Church does not have a self-understanding that is transformed by its union with Christ, if there is no “new corporate man,” then the Church will not build a understanding of the human person, liberty, or community that is any more meaningful than the one it presently repeats.
Gary Young is a partner atKeating O’Gara in Lincoln Nebraska, and is a member of Theopolis’s Civitas Group. Gary also serves as adjunct professor of Legal Writing at the University of Nebraska College of Law, where he is a Harold W. Kauffman Legal Writing Fellow.
[1] Here, I mean to use the term “reactionary” in its non-pejorative sense.
[2] Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).
[3] I am aware that the majority decision had 5 votes. On the matter of judicial authority, the decision had 6 votes, with Chief Justice Roberts providing a concurring opinion on this aspect of the decision.
[4] See, e.g., Alasdair Macintyre, After Virtue (1981); Carl Trueman, The Rise and Triumph of the Modern Self (2020).
[5] See Gary L. Young, “The Church Builds the World,”in Hell Shall Not Prevail, Essays on Ecclesiocentric Postliberalism, Athanasian Press, Eds. James R. Rogers and Peter Leithart, pp. 58-72 (2024).